Tag: credit

Stellenbosch Law Clinic filed an application in the Western Cape High Court, seeking judicial intervention on the manner in which debt is collected. It believes debt collection needs to be regulated and that costs must be capped.

The clinic is joined by Summit Financial Partners in representing 10 of their clients. All the major role players in the credit industry are involved, with 49 respondents, including all the major banks, the lending institutions, the ministers of Justice and Trade and Industry, and the National Credit Regulator.

“We have a lot of situations where people have been garnished with emolument attachment orders against their salaries. When you sit down and look at it you find amounts in excess of five, six, seven times the principal debt and they’re expected to continue making payments on it,” he says.

In one case, a client was granted an initial loan of R600, but had paid back more than R5 000 – about eight times the initial loan amount. In another, a farm labourer, earning R2000 a month, has R970 garnished from his monthly salary. Back in 2011, he was given a loan of R16 000 and has repaid in excess of R31 500 – yet the creditor alleges he owes R37 000.

Van der Merwe says the reason they get away with it is because there are no rules that the costs levied against the debtor are taxed.

“What you have is the creditors going to their attorneys or their collection agents and telling them to collect on the debt but the charges are borne by the debtor.

“This is why the debtors end up paying these astronomical amounts for small loans, because the attorney and collection agency fees are dumped on them.”

The common law in duplum rule says that interest cannot accrue to more than the capital amount. Since 2007, when the National Credit Act (NCA) came into effect, the statutory in duplum rule has been interpreted by institutions in a myriad ways.

“This is why we are going to court: to request a declaratory order that the statutory in duplum is applicable to all the interest, the costs, including the legal fees that are levied against the debtor – irrespective of whether a judgment has been granted.”

Van der Merwe says on a proper interpretation of the relevant sections of the NCA, it would mean that if the debtor is in default under the credit agreement these amounts may not exceed the unpaid balance of the principal debt at the time of default.

“When a consumer is in default all the combined interest, the collection costs and so on cease to run when they reach the unpaid balance of the principal debt.”

“The problem is creditors say legal costs don’t form part of it, or that this isn’t applicable after judgment.”

In addition to the two declaratory orders, asking for clarity on how sections 101 and 103 of the NCA are interpreted, the clinic is also asking that the court declare that legal fees may not be recovered from the debtor unless they have been taxed.

“Nowhere in the National Credit Act is a distinction drawn between legal fees and collection costs.

“What we’re saying is that creditors want to use expensive attorneys to collect on miniscule debts; debtors can’t be expected to pay those fees.

“We shouldn’t allow debtors to be abused in this way – we need to the court to make a ruling.”

Once the court has clarified allowable collection costs, the clinic wants it to order that an independent expert recalculate the applicants’ indebtedness and then order that if there is an overpayment, the money must be repaid to the debtors.

But before consumers get excited about having collection fees and interest repaid, Van der Merwe says prescription might be at play. “You might have trouble in court claiming that money back because prescription would have to be taken into consideration.

“There will be clarity: everyone will know what is expected and people won’t be abused financially as a result of uncertain legal interpretation.”

Van der Merwe says they are not attempting to vilify small cash loan providers, the credit industry or attorneys in general: “We applaud those creditors who are honest, give loans responsibly and collect responsibly: they play an important part in our economy.

“We are not tackling the industry in general – we have an issue with unscrupulous guys who don’t play by the rules. We are not going to assist so called ‘professional debtors’ either, who abuse the system by getting loan after loan at creditors’ expense if there are no merits in their cases.

“We have a problem with creditors who abuse low-income earners by coaxing them into enticing loans which they would never be able to service based on their limited wages.”

In 2016, the law clinic won a landmark case in the Constitutional Court, which found that several practices relating to the abuse of emolument attachment orders were unconstitutional.

“The court also considered the validity of the initial loan agreements which regularly included interest of 60% annually and they were concluded absent of any, or alterna- tively after severely defective, affordability assessments. Those transactions were conducted in breach of section 81 of the NCA which talks about reckless credit.

“Those specific creditors want to extend reckless credit to consumers, who they know won’t be able to repay the loans, and then they abuse the situation by putting debtors into a debt trap that they’ll never be able to get out of.

“People like that shouldn’t be able to shirk responsibility in their collection when they use illegal practices. They cause economic catastrophe in the lives of those clients.”

Van der Merwe says that after the Marikana massacre of August 16, 2012, clear linkages were drawn between the demands for higher wages and the abuses in the credit industry.

“Those workers demanded more money to allow them and their families to make a living because their salaries were severely garnished by credit providers that were instituting emolument attachment orders that were illegal and unconstitutional.

“We are trying to avoid those situations arising in the future, by asking the court to assist us in fostering a healthy and responsible credit environment.”

Treasury estimates that the total debt that could fall under the debt extinguishment proposals made in the National Credit Amendment Bill proposed by Parliament’s trade and industry committee could range between R13.2bn and R20.7bn.

Banks and retailers would be the most heavily affected by the proposed scrapping of debt‚ Treasury said in a presentation to Parliament’s trade and industry committee on Tuesday during public hearings on the proposals.

The committee has proposed amendments to the National Credit Act‚ which include writing off the debt of those earning below R7‚500 month and who fall within the threshold of realisable assets.

According to research by consultancy firm Eighty20‚ about 56% of the credit active market of about 18-million has an income of R7‚500 a month or less.

“Based on the income estimates approximately 9-million borrowers could potentially meet the eligibility criteria for debt intervention as per the draft bill‚” the organisation said in a presentation to the committee.

“In total borrowers that could qualify for debt review hold over 16-million loans. 29% of these loans (4‚7-million) are three months or more in arrears belonging to borrowers who could qualify for debt intervention. The total outstanding balance on these loans is around R20‚7bn.”

The Black Sash said in its presentation that the debt relief proposals would provide much-needed assistance to social grant beneficiaries who are prey to loan sharks.

The Black Sash has been at the forefront of exposing the vulnerability of social grant beneficiaries to unlawful deductions and the predations of loan sharks. The organisation welcomed the R7‚500 income threshold as this would cover many social grant recipients.

Black Sash national advocacy manager Hoodah Abrahams-Fayker noted that the Easypay bank account – a joint operation between Grindrod Bank and Net1 subsidiary Moneyline – had fuelled indebtedness “as many loan sharks use this card to provide Citrus Loans often with no affordability tests‚ no proper avenues of recourse‚ no administrative justice and no debt counselling.

“Grant beneficiaries are trapped in a vicious cycle using debt to pay for food and basic living needs. Overindebtedness is a social and economic challenge with far-reaching consequences for vulnerable social grant recipients (who) can become easy prey for moneylenders as they are receiving a guaranteed monthly income from the state.”

Treasury noted in its presentation that there were currently gaps in the protection of the overly indebted. For example‚ there were weaknesses in the insolvency framework as sequestration did not work for those with no income and no assets. The debt review system only worked for those earning more than R7‚500 per month.

Treasury proposed that the debt review system be improved for those with some income. This could be completed “relatively quickly”. However‚ a mechanism was needed for those with no income. A revision of the Insolvency Act was under way but could take some time to finalise.

The Department of Justice and Constitutional Development also made technical suggestions to improve the proposed National Credit Amendment Bill.

A new ruling by a Cape Town high court judge, Keith Engers, has set aside a credit regulation requirement that has been in force since March 2015.

According to an article in Business Day, The Foschini Group (TFG), Mr Price and Truworths had brought an action against the National Credit Regulator (NCR) and the minister of Trade & Industry, asking the court to set aside an amendment to the National Credit Act (NCA) that required applicants for credit to produce their three latest pay slips.

Their stance was that it disadvantaged consumers who were self-employed or employed in the informal sector – approximately 15% of TFG consumers, according to the information given to Business Day.

TFG CFO and CEO designate Anthony Thunström says the company has always been a responsible lender, and has “models for applying stringent rules when it comes to determining affordability”.

According to Business Day, 69% of Truworths’ sales are attributed to credit, but only 24% of new credit applicants were approved in the half-year to December 2017.

Meanwhile, Mr Price has only had 36% of new credit applications approved in six months to September 2017.

Debt counsellors are warning consumers against buying food on credit, saying that it will have a negative impact on overall debt.

Pick n Pay is the latest store to offer customers the option of purchasing groceries on credit.

The supermarket says that it will use its Smart Shopper card programme to select shoppers who qualify.

Pick n Pay deputy CEO Richard van Rensburg says that the store accounts have been designed to exclude hidden fees that exacerbate the cost of credit and charge the lowest monthly fee of R10.

However, Debt Rescue CEO Neil Roets says that it is better to buy assets on credit than food.

“Food is something that you definitely should not buy on credit. Good debt is having a home loan or a car. But if you have to finance food, then you are in big trouble.”

Debt counsellor Deborah Solomon says that it’s not advisable for shoppers to buy food on credit due to the interest charged on them.

“Food is a necessary living expense which you need to be able to have access to and it’s not wise to spend credit on food, especially when you can’t afford to pay that credit off in its full capacity at the end of the month.”

A 2014-15 World Bank report declared that South Africans were the world’s “biggest borrowers”. Consumer credit-use statistics — a comparison of employment and credit consumer numbers — suggest that South Africans are failing to manage their debt responsibly and that some credit providers might be missing the mark regarding their criteria in affordability assessments.

Despite tougher affordability requirements and large-scale efforts to educate consumers, credit use is outpacing employment growth, and the over-indebted gap is widening.

There were 16.9-million credit-active consumers in 2007, the national credit regulator’s Credit Bureau Report reads. At the time, 6.38-million (or 37.7%) had an impaired credit record. In 2013, there were 20.21-million credit-active consumers, of whom 9.69-million (47.9%) had impaired records.

A record is declared impaired if a debtor is three or more months in arrears on an account, if the debtor is under administration or if there are judgments against the debtor.

In the fourth quarter of 2016, there were 24.31-million credit-active consumers, 9.76-million of whom had impaired records — 40%, or two out of every five credit-active consumers.

While employment has increased by only 18% since 2007-08, the number of credit consumers has grown by almost 44%. The percentage of consumers in bad standing grew from 37.75%, to 40.15%. There are now 24.31-million credit consumers — more than 8-million more people than the total number of employed people in SA.

Even allowing for the fact that some people such as financially supported students may not need a job to qualify for certain credit accounts and not all SA’s employed people will be credit active, there is a huge difference in the numbers.

The official credit statistics for 2016’s fourth quarter peg collective consumer debt at more than R1.69-trillion. A significant portion of this — R8.75bn or more than half of debt book value — comprises mortgages, which are considered a wealth-creation type of debt.

For most people, a home loan will be the largest personal debt they incur in a lifetime.

If we move from rand value to sheer number of credit facilities by type, the numbers shift significantly. Mortgages only represent 4.47% of credit accounts. Credit facilities such as credit cards, overdrafts and store cards make up 65% of credit accounts and unsecured credit 14.6%.

These figures do not account for informal debt. Credit bureaus do not list what consumers owe municipalities, in school fees or unpaid medical accounts. One estimate is that only 40% of consumer-debt information is captured by credit bureaus.

As private loans and lending granted outside the formal system, such as loan sharks or mashonisa loans, are not captured, the problem is likely to be much larger than official numbers indicate.

World Bank survey data from a sample of 1,000 people in the Global Findex Report showed that 86% of South Africans took loans in 2016, mostly from acquaintances or private microlenders.

If risk pricing is added to the picture, the poorer end of the consumer market is out in the cold. All credit on offer — from loans to store cards or hire purchase agreements — is priced for risk: the higher the perceived chance of default, the higher the interest rate charged. Low-income earners will, therefore, usually be charged more than high-income earners for the credit on offer.

Instead of excluding poor and risky consumers from credit, many providers allow access but at higher interest rates. Prohibitive rates, greater need — due to lack of generational wealth or more insecure income — and a lack of financial education collide, often overwhelming the most economically vulnerable.

Under apartheid, most South Africans were denied access to certain financial services including credit, either through direct policies or systemic barriers. When that political system was dismantled, there was a desperate need to reform the social system and the barriers to financial inclusion.

The government has been chipping away at the legislation ever since with repeals, new acts, amendments to existing legislation, patches and policy reimagining. The goal is a very narrow sweet spot — increasing financial access while limiting opportunity for abuse of the hungry-for-credit populace.

The Usury Act of 1968 was replaced by the National Credit Act of 2005. The National Credit Amendment Act in 2015 was a further tightening of the reins, especially in terms of the affordability assessments that credit providers are now required to perform. With each new piece of legislation, the government has tried to get one step closer to that dual target.

Their success is a matter of debate, depending on which side of the market you find yourself. One particularly controversial move was the credit information amnesty, or as the credit and legal fraternity know it, the Removal of Adverse Consumer Information and Information Relating to Paid-up Judgments regulations, 2014.

It compelled credit bureaus to remove information of judgments, defaults, and terms such as “delinquent” or “slow paying” from consumer credit profiles, provided that the capital amount owing had been cleared.

This became a requirement of the bureaus and the credit providers supplying payment information to them. It also meant that no matter how abysmal consumers’ track records of debt payments were, if it was paid up, they were given a clean slate by credit providers doing new assessments.

It was championed by the Department of Trade and Industry and one that caused some ructions between it and the Treasury. In 2015, the then chief director of financial sector development at the Treasury, Ingrid Goodspeed, said that the Treasury had “fought that credit information amnesty, we fought it to the last day”.

Credit providers needed “more information, not less”, she said at the time.

“The fact that you wipe it out has not … changed anything. The same people who were overindebted before are now even more overindebted.”

The Treasury was asked to update its position on the matter, but was unable to respond in time for publication.

Officially, two out of five consumers are credit-stressed, and unofficially, the picture is much worse. By omitting municipal, education, private or loan-shark debt, and education debt, our country’s credit numbers underplay a significant portion of the personal debt carried by the average consumer.

Add to that the pressure of crippling debt-recovery measures such as garnishee orders and asset attachment, insecure employment, stretched regulators, loopholes in the laws and the rising cost of living and the picture is far worse.

Economists say that the amount of consumer debt a country can support depends on the health of the underlying economy. SA may be about to find out what the limits are.

Consumers, many of whom are vulnerable in an environment of rising retrenchments and weak economic growth, are trying to pay down debt.

Consumers adopted a cautious stance to credit applications in the first quarter of 2017, figures from the National Credit Regulator show.

At end-March, credit applications decreased by 998,000 to 9.53-million, representing a quarter-on-quarter decline of 9.5%, the regulator said. Consumers, many of whom are vulnerable in an environment of rising retrenchments and weak economic growth, are trying to pay down debt.

Head of Absa home loans Carel Grönum said last week household debt to disposable income, at 73%, was at its lowest level since the global financial crisis. Credit bureau Compuscan recorded a 13% year-on-year increase in the number of accounts that were more than three months in arrears in the first quarter, suggesting consumers cannot afford to take on more debt.

The total value of new credit granted in the first quarter fell 5.6% from the fourth quarter of 2016 to R116.5bn, representing a 7.5% year-on-year increase, the regulator said. The largest increase was recorded in the developmental credit category, which nearly doubled to R5bn. The value of mortgages granted and of other secured and unsecured credit agreements, fell.

Credit facilities such as credit cards and overdrafts increased moderately, while short-term credit granted also declined.

Alan Amron has invented a battery-powered squirt gun, a digital photo frame, even a laser system that may someday provide a visible first-down line for fans inside NFL stadiums. He holds 40 US patents, but he’s most interested in an invention for which he gets no credit: the Post-it Note, that ubiquitous sticky-back product made into a worldwide success by the 3M Company.

Amron, 67, says he invented what he called the Press-on Memo in 1973, a full year before 3M scientists developed what later became known as the Post-it Note. Although Amron settled a previous lawsuit against 3M, he’s suing again in federal court in Fort Lauderdale. He says the company breached its previous agreement not to take credit. The settlement is confidential.

Now Amron wants $400 million in damages – and something he says is even more important to him.

“l just want them to admit that l am the inventor and that they will stop saying that they are the inventor,” Amron says in a recent interview. “Every single day that they keep claiming they invented it damages my reputation and defames me.”

3M, based in Maplewood, Minnesota, is a one of the 30 companies that make up the Dow Jones Industrial Average on the New York Stock Exchange. The maker of Scotch tape, Ace bandages, sandpaper, films, office products, window insulation, paint remover and hundreds of other products earned more than $30 billion in revenue in 2015, according to the company’s website.

The company says Post-it Notes were invented by 3M scientists Arthur Fry and Spencer Silver, both members of the National Inventors Hall of Fame. Silver came up with the adhesive—one that could be used over and over yet not mar surfaces to which it attached—and Fry the idea of using it for the small, yellow squares of paper to become sticky-back notes.

“3M developed Post-it Notes without any input or inspiration from Mr. Amron and it is false and misleading for him to state or suggest that he created, invented, or had any role in the product’s development,” says company spokeswoman Donna L. Fleming Runyon in an email. The company declined to comment further on the lawsuit.

Alan Amron talks to a reporter in West Palm Beach, Fla. Amron is suing 3M Company in a South Florida federal court in a dispute over who invented the ubiquitous Post-it Note.

Fry, now 84 and retired, is named as a defendant in Amron’s lawsuit, but Silver is not. Fry did not respond to an email and a phone message seeking comment. Silver also is retired, Runyon says.

The history of invention is full of people competing for credit for the same idea, and often things come about because smart people are working separately. Take the microchip: Texas Instruments and Fairchild Semiconductor battled for a decade in court over who came first and deserved the patent, deciding amid the wrangling it was best to work out a licensing deal for both companies.

Amron says his idea in 1973 came about with chewing gum. He was looking for a way to stick a note on his refrigerator for his wife and used gum, providing inspiration for the adhesive he would use on his Press-on Memo. That year he took the sticky notes to a New York trade show and met briefly with two 3M executives, Amron says, but nothing came of the meeting.

Fry and Silver came up with what 3M originally called the Press ‘n’ Peel memo pad in 1974, but it wasn’t brought to the market until 1977 and didn’t really take off until 1980, when it was renamed the Post-it Note. It’s now one of the top-selling items in 3M’s consumer products division, which in 2015 earned $4.4 billion for all products, company figures show.

Post-it Notes have become so iconic that in the 1997 movie “Romy and Michele’s High School Reunion,” the title characters, played by Lisa Kudrow and Mira Sorvino, claim credit for inventing them to impress their former classmates.

It was also in 1997 that Amron sued 3M claiming he was the true inventor. The case was settled, and Amron agreed to release the company from any future claims, which intellectual property lawyers say could make his new Florida lawsuit difficult to win.

“I would predict what he has left perhaps is the enforcement of a settlement agreement but not the claims he is pursuing,” says Miami attorney Jeffrey Feldman, who is not involved in the case. “The first thing I would want to know is whether or not there was an agreement between them regarding who was allowed to say what.”

Amron says the agreement was that neither could claim credit because, years earlier, a Swiss inventor had supposedly devised a similar product. But that turned out to be a less-useful adhesive, not the entire sticky note, and Amron says he felt 3M used the Swiss tale to trick him into the settlement – and is now breaching that deal by claiming credit for the product.

No trial date is set for Amron’s lawsuit, which survived a 3M initial attempt last month to get it thrown out based in part on the prior settlement of similar claims. A federal judge has ordered both sides into mediation to possibly reach a settlement and set various legal deadlines through December of this year.

Meanwhile, 3M continues to invent things. According to the company’s year-end 2015 statement, 565 U.S. patents were granted to 3M—bringing its total to more than 105 000.

South African Finance Minister Nhlanhla Nene side-stepped an immediate credit downgrade with his mini budget proposals. Still, investors are betting cuts that would bring the nation’s rating to the brink of junk are just a matter of time.